Torts 5

Prof. Sangseok Ha
 Trespass to Land
• Tangible invasion by an actor of property possessed by another,
whether by the actor herself, or by other persons, animals,
mechanized devices, or natural or artificial substances for which
the actor is responsible.

• Elements of prima facie case

• Physical invasion of P’s real property
• Intent
• Causation
• No damages
Trespass to Land (Physical
Invasion )
• The interest protected by this tort is the interest in exclusive
possession of realty. So, all that is necessary to satisfy this
element is that there be a physical invasion of P’s land.
• The invasion may be by a person or object; e.g. D throws a
baseball onto P’s land; floods P’s land; or chases third person
onto it.
• A trespass to land may also exist where D remains on P’s land
after an otherwise lawful right of entry has lapsed.
 Trespass to Land (Difference from
Nuisance)
• If intangible matter like vibrations or odor enters, the P may have a
case for Nuisance.
• Difference between Trespass to Land (interference with P’s exclusive
possession of property) and Nuisance (interference with P’s use or
enjoyment of property)
• E.g. Damages from blasting concussion are treated as a Nuisance case or
as a case of strict liability case if ultra-hazardous activities are involved.
• Persistent aerial surveillance from a height outside his zone of user may
constitute a nuisance.
 Trespass to Land (P’s real
property)
Real property includes not only the surface, but also airspace and
subterranean space to the height or depth P can make beneficial
use of such space.
• One could commit a trespass by stringing wires over the land,
flying an airplane at low altitude over it, tunneling under it, etc.
• Quite apart from the position at common law, it is provided by
statute that civil aircraft which fly at a reasonable height (having
regard to wind, weather and all the circumstances of the case) do
not commit trespass.
Kelsen v Imperial Tobacco Co.
• Case> An advertising sign erected by the defendants on their own
property, which projected into the airspace above the claimant’s
shop. The signs made of sheet metal mounted on a frame which
fixed against the wall but with the mounting, it extended by 4
inches into the air space above the flat roof of the shop.
• It was held that the intrusion of an advertisement some four
inches into the airspace of neighboring occupier amounted to
trespass, not nuisance. Although any injury to the plaintiff was very
small an injunction was granted as otherwise it would have effectively
given a licence for continued violation of the airspace.
 Trespass to Land (Possession)
• Anyone in actual or constructive possession of the land may
maintain this action. This is so even if that possession is without
title.
• Lodger, servant do not have possession.
• Squatter has sufficient possession to bring trespass.
• A squatter is someone who lives in an unused building without having a legal right to do so and
without paying any rent or any property tax.

• Ownership or possession or right to use

o Real owner (own and possess)
o Possession under a lease
• Tenant (possessor)
 Trespass to Land (Intent)
• Intent to trespass is not required but Intent to enter onto the
land is sufficient.
• Mistake as to the lawfulness of the entry is no defense as long as
D intended the entry upon that particular piece of land. D need
not know that the land belonged to another.

• Case> Relying on boundary markers fixed by a reputable surveyor,

Farmer clears land for cultivation that he believes to be his. In
fact, the survey was in error and Farmer cleared a portion of
neighbor’s land.
Trespass to Land (No damage
required)
• P can recover without showing actual injury to the land.
(actionable per se)

• E.g.) Tom intentionally bounced a tennis ball against the

side of a building owed by Owen. There was no damage to
Owen’s building.
• What If Tom had accidently but negligently hit Owen’s
building with the ball?
Trespass to Land (by Omission)

• Omission to remove something from the land which was lawfully

there to begin with.
• A visitor’s stay exceeds the duration of his licence.

• Even though Def enters lawfully another’s land, Def ought to

remove and could not exceeds the duration of license. Consider
movie theater.
Continuing Trespass
• Case> (Holmes v. Wilson) Highway authorities supported a
road by wrongfully building buttresses on the claimant’s
land, and they paid full compensation in an action for
trespass.
• They were nevertheless held liable in a further action for
trespass, because they had not removed the buttresses.
Nor does a transfer of the land by the injured party prevent
the transferee from suing the defendant for continuing
trespass.
Defences (Licence)
• A licence is “that consent, without passing any interest in the
property to which it relates, merely prevents the acts for which
consent is given from being wrongful”
• distinguish a licence from interests in land like leases, easements at
law. (A right to possess does not fall into license)
• Interests in land confer “rights in rem” (= right against a thing), i.e.
rights which avail against every person generally, including, of
course, the lessor or grantor himself, whereas a licence normally
gives only “a right in personam” (right against a person) against the
licensor.
Defences (Justification by law: Authority
to enter land )
• Entry by law officers
• The police could not enter a someone’s private house without permission or
warrant
• The police could enter for the purpose of arresting and searching for an
offense or other purpose, such as saving life or preventing serious damage
• Same as Firefighters
• Entry by private persons in furtherance of the law
• to prevent murdering or serious offenses
• Entry under statute - e.g. pandemic circumstance
• within the certain restrictions based on statute, entry is not trespass to land
Defences (Abuse of authority)
• Abuse of authority: Trespass ab initio
• If the actor abuses his authority, he becomes a trespasser ab
initio and his act is reckoned as unlawful from the very
beginning.
• But there is the modern limitation that partial abuse of an
authority does not render everything done under it unlawful.
Trespass to Land (Remedies)
• Damages : nominal if there is only slight harm to land
• Injunction: to prevent further acts of trespass (discretion of the court)
• An action for the recovery of land: if Def interfered Pl’s lawful
possession of the land (formerly known as ejectment).
• Re-entry: “self-help” if landowner used no more force than necessary
to remove the other party and his property, the landowner is not
civilly liable”
• If a landowner use reasonable force to expel trespasser or remove other
person’s objects in his or her land, the landowner is not liable
Interfere with goods
• Trespass to goods:
• small damage on goods

• (Detinue):
• When Def wrongfully detained Pl’s goods and refused to deliver
back on lawful demands – abolished in UK

• Conversion
• Big damage
Trespass to goods
• Elements of prima facie case of Trespass to goods
• An act by D that interferes with P’s right of possession in a
chattel
• Intent
• Causation
• Damages required

• Actual damages (not necessarily to the chattel, but at least to a

possessory right) are required.
 Trespass to goods
• Trespass to chattels is designed to protect a person against a wrongful
physical interferences with his right to possess his chattel.
• The interference may either be an intermeddling (directly damaging the
chattel) or a dispossession (depriving P of his lawful right of possession of
the chattel).
• Case> on A’s death, his sister-in-law removed jewelry from the A’s dead
body. Def mistakenly believed that it was necessary for its safety. (Kirk v
Gregory)
• Court held that Def was liable for trespass because Def’s mistaken
belief would not be defense.
Trespass to goods
• Ex) scratching the panel of a vehicle
• It needs to prove some damage or asportation

• Trespass in an interference with possession

• Who can sue: P should be in possession.
• Exception: trustee and beneficiary

• In the U.S., small damage on goods=Trespass to goods

• Big damage=conversion
 Conversion
• Elements of prima facie case
• An act by D that interferes with P’s right of possession in a chattel
• The interference is so severe that it warrants requiring D to pay the
chattel’s full value
• Intent
• Causation
• Damages required

• To be conversion, the conduct must be “so extensive an encroachment

on the rights of the owner as to exclude him from use and possession
of the goods.”
 Conversion
• Acts of conversion include wrongful acquisition (theft), wrongful transfer,
wrongful detention, and substantially changing, severely damaging, or
misusing a chattel.

• Ex) refusing to deliver P’s goods, putting them to one’s own use or consuming
them, transferring them to a third party, destroying or damaging them in a
way that they lose their identity (Car=breaking engine, and could not move)
(compare scratching)

• The longer the withholding period and the more extensive the use, the more
likely it is to be conversion. A less serious interference is trespass to chattels.
Conversion
• (add water in wine bottle) D mixed water in wine bottle. Ct stated that it
would be conversion because D converted part of contents and
destroying wine’s identity. (Richarson v Atkinson)

• The owner of horses came on board of a ferry. But a ferryman refused

to carry these horses. The owner also refused to take them back on
shore. Later, the owner sued for conversion (Fouldes v. Willoughby)
• Held) the ferryman was not liable for conversion why?
• Not convert or destroy
 Conversion (Remedies)
• P may recover damages (fair market value at the time of
conversion) or possession (replevin).

• No defense that Def honestly believed that he has a right to

deal with the goods or he had no knowledge of the owner’s
right in them.